Franklin Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1972

194 N.L.R.B. 643 (N.L.R.B. 1972)

FRANKLIN EQUIPMENT CO., INC. 643
Franklin Equipment Company , Inc. and Laborers'
District Council of Virginia , Production and Main-
tenance Employees, Local Union 1138 affiliated
with Laborers' International Union of North Ameri-
ca, AFL-CIO. Case 5-CA-5138
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
December 20, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 17, 1971, Trial Examiner Thomas A.
Ricci issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Franklin Equipment Company, Inc.,
Franklin, Virginia, its officers, agents, successors and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on July 27, 1971, at Franklin,
Virginia, on complaint of the General Counsel against
Franklin Equipment Company, Inc., herein called the
Respondent, or the Company. The charge was filed on
April 15, 1971, and the complaint issued on June 17. The
issue of the case is whether the evidence suffices to prove
the complaint allegation that the Respondent refused to
bargain with Laborers' District Council of Virginia,
Production and Maintenance Employees' Local Union
1138, affiliated with Laborers' International Union of
North America, AFL-CIO. Briefs were filed after the close
of the hearing by the General Counsel and the Respondent.
I As alleged in the complaint and admitted in the answer, I find that all
production and maintenance employees employed by the Respondent at its
Franklin, Virginia, plant, including service department employees, parts
department employees, inventory, filing and warranty clerks, but excluding
The Respondent, a State of Virginia corporation, has a
plant in, Franklin, Virginia, where it is engaged in the
manufacture of logging equipment. From this plant the
Respondent receives goods valued in excess of $50,000 and
ships merchandise valued in excess of $50,000 directly to
points outside the State of Virginia. The complaint alleges,
the Respondent admits, and I find that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of "the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue Presented
This is a refusal-to-bargain case. The Union was certified
by the Board as exclusive representative of the Respon-
dent's production and maintenance employees on March
19, 1970, and the parties thereafter met a number of times
in regular negotiating sessions.' At a last meeting on
January 11, 1971, they reached complete agreement on all
substantive terms of a collective-bargaining contract and
decided the Union's attorney would prepare the appropri-
ate draft and forward it to the Company for approval and
signature. The contract was mailed out by the Union's
attorney on February 2. It was followed by five letters to
the Company's principal negotiator during the next 60
days, each inviting, and importuning the Respondent's
representative to respond, to have the contract signed, to at
least communicate with the Union. Throughout February
and March there was only one communication from the
Company to the Union. On March 2 its lawyer telephoned
to say he was arranging to meet his clients, would call again,
and intended to arrange a meeting for March 8. He did
nothing about this and never called back. On April 5 he
wrote, saying cryptically the document he had received.2
months earlier was "in no way final. "With the Union still
pressing, on the 12th of April the Company wrote there
could be no meeting until at least after April 21. On that
same day, April 12, some of the employees filed a union
decertification petition with the Board. Four days later the
Respondent withdrew recognition from the Union on the
ground it doubted its majority status.
The complaint alleges that from February 2 and
thereafter the Respondent literally refused to bargain with
the employees' majority representative and thereby violated
Section 8(a)(5) of the Act. In pertinent part, the Act reads:
"It shall be an unfair labor practice for an employer . . . to
refuse to bargain collectively with the representative of his
professional employees, office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Sec 9(b) of the Act
194 NLRB No. 110
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees," and defines bargaining as including the
"mutual obligation ... to meet at reasonable times and
confer in good faith ...." It is also alleged that the
Respondent violated Section 8(a)(5)' by its refusal to sign
the collective-bargaming agreement fully negotiated and
agreed upon. See Heinz v. N.L.R.B., 311 U.S. 514.
The Respondent justifies its delay in responding to the
repeated requests from the Union on the general ground
that certain officials of the Company were busy elsewhere,
but primarily on the specific ground that its lawyer had too
much to do for his other clients during the period of almost
2-1/2 months. The Respondent also denies there had been
agreement on a contract and therefore contends there was
nothing to sign at all.
There is no significant evidentiary dispute as to the truly
pertinent facts upon which the complaint rests. These go to
the factual questions: (1) What is it that was agreed upon
between the parties on January 11, 1971, and (2) what
demands for meeting did the Union make thereafter and
what did the Respondent do in response.
B. Agreement on January 11, 1971
By January 11, 1971, there had, taken place upwards of 10
bargaining sessions . In November of 1970 Augustus
Anninos, a lawyer, had taken over as principal spokesman
for the Union in place of another lawyer in his firm who at
the time left for other employment. He testified as to what
took place on the 11th and also on January 5, the
penultimate meeting. Robert Moss, the lawyer, who did the
bargaining for the Company throughout together with
company officers, and who also represented the Respon-
dent at the hearing, spoke as sole witness for the defense,
but offered no testimony at all about the January 5 and 1 I
meetings . Anninos' testimony therefore stands completely
uncontradicted on the record.
He said that on January 5, in the presence of two union
officers who accompanied him and two company officials
who were also in attendance, he recapped what had gone on
before to assure all parties understood one another. "I said,
`Now, we agree on wages, we agree on the classifications,
we agree on vacation pay, we agree on everything that we
were in dispute.' He [Moss I said, `That is correct, but you
don't have a contract because we never agreed to a
checkoff.' I said, `Now, just to be sure,' and I repeated it. I
said, `Now, the only thing that keeps us from signing an
agreement with the Company is the fact that you will not
agree to a checkoff, is that correct?' He says, 'That's right' I
said, `Well, Mr. Moss, you have an agreement,' and I
reached my hand out to shake his, `because the Union
waives-the Union waives checkoff.'
Anninos also testified that at an earlier meeting the
Company had left it for the Union to decide what the
duration of the contract would be, and that at this point on
January 5-after it had been agreed all substantive matters
were at rest-a question arose over the term. The Union
asked a 1-year agreement, but the Company was uncertain.
It was decided the parties would meet again on the 11th in
Anninos' office. When the parties assembled there 1 week
later the Company, pursuant to a request made in the
interval, presented certain written data about the employee
complement and plant rules. These were received in
evidence without objection as General Counsel's Exhibit 5;
they consist of: a listing of all employees together with
hiring dates, classification and current wages, written
company policies and practices concerning such matters as
vacation rights, insurance benefits , retirement profit-shar-
ing plan, work hours, timeclock procedures, rules of
personal conduct and such things, and, posted notices
pertaining to absenteeism, shift hours and National Guard
duty privileges. Anninos said that after the Union agents
had looked over these papers and found them in order, it
was agreed they would become part of the agreement,
incorporated in some fashion into the contract itself-"to
be attached to the agreement." With this, still according to
Anninos, it was also agreed he would draw up the contract,
incorporate all that had been decided, and send it to Moss.
To record the final understanding Anninos dictated the
arrangement to his secretary, in everybody's presence. He
then asked had he stated it all correctly, and both Moss and
Mr. Owen, the company vice president, said it was.
Anninos sent the draft to Moss on February 2, with a
covering letter that mentioned three items he had added to
the agreement.
The typewritten contract Anninos sent Moss that day
was received in evidence as General Counsel's Exhibit 4; it
is 23 pages long and covers virtually all the substantive
conditions ordinarily found in collective-bargaining agree-
ments, including management right clauses, grievance
procedure, steward privileges, seniority, hours of work, job
classifications, a complete and very detailed schedule of
wage rates, holidays, vacations, health and welfare, leave of
absence, profit sharing, and other such matters.
If four items, or phrases, added to this document
although not agreed upon in advance-three mentioned by
Anninos in his letter of February 2 and discussed by both
lawyers at the hearing, and one brought up by Moss as a
witness and not disputed by Anninos-be held in abeyance
for later consideration here, it must be found that the
comprehensive written agreement sent to the Respondent
for its signature in fact represents a fully negotiated and
agreed upon contract. As stated above, Moss, the only
witness for the defense, denied none of Anninos' testimony
about the January 5 and 11 meetings , showing clearly that
all issues had been resolved by them. Moss had the contract
for many months before the hearing, and despite the fact
his principal defense rests upon assertion this was not the
agreed-upon contract, he pointed to nothing but the four
items mentioned. Indeed, it is clear every clause, however
minute, did conform with the understanding of the parties,
for Moss was able to say at precisely what word a certain
paragraph was supposed to end, but did not because
Anninos. had added a singlewsentence at that point. I find
that the contract received by the Respondent on February
4, 1971, except for the four items, had been fully negotiated
and agreed upon. This is what is received as General
Counsel's Exhibit 4. The parties had also agreed that what
is here received as General Counsel's Exhibit 5, consisting
of a number of printed or typewritten sheets, would become
part of their agreement, whether physically attached to the
contract or incorporated by reference.
FRANKLIN EQUIPMENT CO., INC. 645
C. Bargaining Requests,- Company Refusal
What the Respondent , or its agent , did in response to
union requests for meetings or signature on the contract is
factually clear and not disputed. All that Moss did at the
hearing was press his, or the Respondent's, explanations of
why the Respondent acted as it did. A purpose will
nevertheless be served by setting but the correspondence
itself, for a more detailed picture will serve to shed light on
the perhaps more important question whether the Respon-
dent should be ordered to sign the contract as negotiated.
With the contract draft-General Counsel's Exhibit
4-went the following letter from Lawyer Anninos to
Lawyer Moss.
February 2, 1971
Enclosed is a copy of the proposed agreement as we
discussed.
The changes that probably were not discussed
between us are as follows:
1. In Article XII at the end of paragraph B, we have
added the last sentence.
2. In Article XIX there has been inserted at the
bottom of Page 21 the last sentence.
3. Article XXI
Please let us hear from you as soon as you have had a
change to review the agreement with your clients.
cc: R. E. Owens [The Company Vice President]
Next letter:
February 16, 1971
I would like to hear from you at your earliest
convenience concerning when we can meet to sign the
contract.
cc: R. E. Owens
Again:
February 26, 1971
Please let me hear from you concerning the execution
of the agreement reached between Franklin Equipment
Company and the Union.
Anninos also testified he telephoned Moss' office, was
referred to a out-of-town hotel where Moss was staying, left
word for him to call back , but did not succeed in speaking
with him.
Finally, on March 2 Moss telephoned Anninos, said he
was meeting with his clients on the 4th, and would arrange
for a meeting with the Union the following week, March 8
sometime . Moss never did this, and his only explanation at
the hearing was that "unfortunately" the company officials
he wanted to consult were not "all" there when he visited
the plant in Franklin, and thereafter his interest in other
clients made it impossible for him to "coordinate " with this
one client before April, 1.
Left hanging by Moss' phone call on March 2, Anninos
pressed with another letter to the lawyer.
March 18, 1971
I have been put in a very embarrassing position since
I have notified Mr. Radford that you were meeting with
your clients two weeks ago.
Please let me hear from you promptly as to when we
can meet to sign the contract.
Again, Anninos to Moss:
March 31, 1971
Unless we meet to sign the agreement reached
between the parties hereto within the next seven (7)
days, we will have no other choice but to file an unfair
labor practice charge with the appropriate governmen-
tal agency.
We sincerely hope that we will not have to do so after
many, many months of conferring in an effort to reach
the agreement.
I would appreciate your calling me on Monday, April
5th, so that we may agree on a time.
cc: Mr. Robert E. Owens
On April 5 Moss for the first time claimed the contract
draft was improper : Letter from Moss to Anninos:
April 5, 1971
The document you sent me is in no way final. I
suggest we schedule an early meeting for further
negotiations.
Although put out by this late suggestion that bargaining
must begin all over again , Anninos nevertheless asked for a
meeting:
April 6, 1971
I don't know how to interpret your letter of April 5,
1971. However, we will give it one last try and, in this
connection , please be advised that I am available to
meet with you and your clients in my office on April 13,
in the afternoon of April 14, April 15, in the afternoon
of April 19.
Moss continued to put off
Moss to Anninos:
April 12, 1971
any possible meeting ; letter
In reply to your letter of April 6, 1971 , 1 shall be in
grievance sessions and negotiation `meetings through
April 21st. Please suggest some date subsequent to that
in which we may meet.
It was on April 12 that employees of the Company filed
an election request with the Board to unseat the Union as
bargaining agent . Such petitions must be supported by the
requisite signatures of employees, usually some form of
petition . Moss said he knew of such a petition "in April."
He must had known about it before the 12th; and he must
had learned of its existence from the company officials, for
Moss' office is in Richmond , perhaps 100 miles from
Franklin. Apparently, there was enough "coordination"
between lawyer and client for this purpose.
Moss' next letter to the Union came on April 16,
withdrawing recognition.
Analysis and Conclusion
I find that the Respondent refused to meet with the
Union , and to bargain, on request , as the statute requires,
and thereby violated Section 8(a)(5) of the Act. The main
thrust of the defense is that the lawyerwas too busy with his
other office work to do the bargaining for the Company. It
is not a defense available to an employer that its chosen
representative had no time available to discharge this-one
statutory duty. Insulation Fabricators, Inc., 144 NLRB 1325,
enfd . 388 F .2d 1002 (C.A. 4). The duty to bargain rests
upon the employer and not upon its agent , and the Board
has long held that an employer may not divest itself of the
legal obligation by shifting the responsibility to its agent.
See Village Rambler Sales, Inc., 174 NLRB No. 43. No
charge of wrong doing has been leveled at the lawyer; he is
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither a respondent nor a party. "The right of employees
to engage in collective bargaining cannot await the personal
convenience of any particular representative, whether hired
by employer or labor organization." Woody Pontiac Sales,
Inc., 174 NLRB No. 81.
Even assuming, contrary to the fact, that there was a
serious departure between whatever had been agreed upon
and the contract draft received from Ammnos, this fact
would not excuse the Respondent's refusal even to respond
to the repeated requests for some kind of meeting. Anninos'
letters did ask the Company to sign, but they also, after a
while, requested that the parties meet and talk about
whatever might be in the Company's mind. Moss knew,
when he received the contract, that there were some
changes. The accompanying letter told him so, and he
admitted reading the document and seeing for himself. It
will not do for an employer, 2 months later, to interpose
such a belated contention between itself and so long a
deliberate failure to communicate with the bargaining
agent at all. There is no reason for doubting Moss' word
that he had nothing to do with the decertification petition
among the employees, and there is no evidence proving the
Company was responsible for its creation. But Moss said he
did know of the Board's 1-year certification rule, Ray
Brooks v. N.L.R. B., 348 U.S. 96, and therefore the suspicion
that the long delay was in fact occasioned by at least the
hope of such an eventuality is not entirely unwarranted. In
view of its refusal to bargain with the Union as the statute
dictates, the Respondent must be ordered to bargain now
on request.
In his contract draft-General Counsel's Exhibit
4-Anninos added 4 items which had not been specifically
agreed upon. They are as follows:
1. Article XII contains three paragraphs respecting
vacation privileges. At the end of one paragraph Anninos
added: "The employer agrees to pay the vacation pay when
the vacation begins." On reading the documents given him
on January 11 by the Company concerning existing
conditions at the plant, Annmos first learned that with
respect to National Guard duty the Company pays for such
absences in advance, and he therefore thought it reasonable
to suggest like advance payments for vacations. The
question precisely had not arisen during the bargaining
sessions.
2. Article XIX of the contract sets out a detailed
understanding about the Profit Sharing Plan the Company
had been making available to the employees. At the end of
the Article Anninos added the following clause: "The
Company agrees to keep this profit sharing plan, as
described in the attached `Exhibit A,' in full force and
effect."
3. During the negotiations the parties had talked about
certain employees who were in laid off status. They could
not agree as to what recall rights, if any such employees
would have. In his draft Anninos added an article XXI: "It
is specifically understood between the parties to this
Agreement that all laid off employees who were laid off by
the Company for economic reasons between March 19,
1970 and the date of the signing of this Agreement shall
have their rights interpreted as construed by the National
Labor Relations Board insofar as recall back to the
Company for employment is concerned."
4. A last change added by Anninos, never mentioned by
anyone before the hearing, is a clause providing "the parties
shall initiate negotiation no later than fifty (50) days prior
to the anniversary date."
These are the "changes" in the overall settlement that
moved Moss to tell the Union, in his letter of April 5, that
the contract was "in no way final," and to, contend, at the
hearing, that Anninos' draft "put us [Company and Union I
right back where we would've been in the bargaining
sessions." In the total circumstances shown on this record,
it must be held that all four of the language changes
together did not amount to such deviations from the
settlement reached as to warrant saying there was no
contract ready to be signed. This conclusion rests in part
upon what the insertions in fact provide and in part upon
the Respondent's indicated indifference to them.
Vacations had been agreed upon in detail, but nothing
had been said as to when payment for vacation time would
be made. The plant rules which the Company placed in
Anninos' hands on January 11 stated that if a man chose to
use his vacation time to do National Guard duty, he would
be paid for the vacation in advance. For Anninos to add
that 'advance payment would also be made for regular
vacation was the minutest of details indeed. The profit-
sharing plan had also been discussed and agreed upon, with
express provision that the amount of contributions to be
made would be in "such amount as the Board of Directors
shall deem advisable." When Anninos added that the plan
should not be changed during the contract year he added
nothing significant to the agreement . Clearly, the Company
would still be free to add no more than the directors saw fit,
possibly even nothing, throughout the year. Moreover, any
change the Company might make during the life of the
contract would be a violation of the Statute in any event,
for an employer is not free, without bargaining with the
majority representative, to alter agreed-upon conditions of
employment unilaterally. Fibreboard Paper Products v.
N.L.R.B., 379 U.S. 203. Again, therefore, while the inserted
phrase spoke of a matter not mentioned during the
bargaining, it can hardly be called a contract proposal such
as could possibly justify the contention that all matters were
thereby reopened for consideration anew.
As to the idea that laid-off employees would be free to
turn to the Labor Board for vindication of any real or
fancied statutory rights, this too was no more than
restatement of what they already were privileged to do,
contract or no contract. Certainly the employer has a right
to insist there be no such language in the collective-
bargaining agreement it signs. It is quite another matter to
say the Union was thereby proposing something of
substance that bore such a relationship to the economic
elements of the agreement as to require relative reappraisal
of all subjects so as to weigh each and every one against all
others.
Of greater significance in this case is the fact Moss
himself did not consider these insertions matters of real
moment. Had they truly altered the substance of the
settlement he admitted on January 11 to have been
finalized, he would for the least quickly so have advised
FRANKLIN EQUIPMENT CO., INC.
Anninos. Moss admitted he noticed the changes when he
received the draft. And when, a month later, he did
telephone the Union's lawyer, it was only to hold him off
with a promise to gather his clients the following week. No
mention then of the necessity for discussing substantive
matters with the Union. It was only on April 5, when, it is
fair to infer, the decertification petition had become a
reality, that he first questioned the finality of the draft. But
even at that late date he still made no reference to the items
Anninos himself had pinpointed in his letter 2 months
earlier. And finally, that Moss strained at the hearing to
elevate these miniscule matters to major importance, is
strongly indicated by his testimony about a fifth alleged
change he accused Anninos of making in his draft
agreement. Moss testified the draft contained "a great deal
of verbiage which was sent out in the personnel book which
I had agreed to incorporate by a reference. I found that
counsel had taken this and put it in the contract." He was
speaking about a portion of the plant rules which he himself
had given the Union for the purpose of making them in one
way or another part of the agreement. In the end it was not
clear how Moss wanted the personnel rules to be part of the
contract, by physical stapling, by word reference, or what.
This is hardly the sort of good faith approach to collective
bargaining dictated by the statute.
I am satisfied the Respondent well knew the Union's
draft received in the mail correctly reflected the agreement
reached. Anninos' suggestion, in his covering letter of
February 2, that the Company "review the agreement,"
referred to the phraseology used, the usual courtesy owed to
another lawyer, and Moss so understood it. I find the
Respondent refused to sign the agreement, in complete
reversal of its commitment, and thereby violated Section
8(a)(5) of the Act.
On April 12, 1971, a decertification petition was filed by
some of the employees in the bargaining unit, and on April
16 the Respondent wrote to the Union advising that
because the decertification petition had been filed, the
Respondent had "good reason to doubt" the Union's
majority representative status. This was unequivocal
announcement of intention no longer to recognize the
Union as bargaining agent or to negotiate with it in any
manner thereafter. I find that by such withdrawal of
recognition the Respondent violated Section 8(a)(5) of the
Act. The literal refusal to meet on request had been going
on for 2 months, and the refusal to sign the agreed-upon
contract had already occurred. In the circumstances, the
fact that employees thereafter filed a decertification
petition cannot serve either as objective ground for a
reasonable doubt, or as justification for a deliberate refusal
to bargain. Brooks v. N.L.R.B, 348 U.S. 96; United States
Gypsum Co., 157 NLRB 652; Franks Brothers v. N.L.R.B.,
321 U.S. 702.
IV. THE REMEDY
An adequate remedy for the unfair labor practices
committed requires restoration of the status quo. The
Z General Asbestos & Rubber, 183 NLRB No. 27
3 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
647
Respondent must therefore be ordered to recognize the
Union as exclusive representative of its production and
maintenance employees and to bargain with it on request
with respect to whatever matters normally arise in the
collective-bargaining relationship. The Respondent must
also be ordered to sign the contract agreed upon on January
11, 197 1, with effective date February 4, 1971, This means
signing and being bound by the document received in
evidence as General Counsel's Exhibit 4, after deletion of
the following four phrases detailed and discussed above: (1)
the last sentence in paragraph B of article XII; (2) the last
sentence in article XIX; (3) article XXI; and (4) the phrase
in article XXII: "Thereupon, the parties shall initiate
negotiations no later than fifty (50) days prior to the
anniversary date." As to the employee status data and plant
rules, consisting precisely of what was received as General
Counsel's Exhibit 5, they shall be made part of the contract
by physical attachment and incorporation by word
reference. A no less important element of the appropriate
remedy shall be that the Respondent must retroactively
make whole all of the employees included in the bargaining
unit for any economic benefits they would have enjoyed
under the terms of the contract from February 4, 1971, on.2
Exact effectuation of this aspect of the order is left to the
compliance stage of this proceeding.
The unfair labor practices found are of such a nature as
to require an order that the Respondent be enjoined from
hereafter violating the proscriptions of the Act in any other
manner.
CONCLUSIONS OF LAW
1. The Respondent and the Union are, respectively,
employer and labor organization within the meaning of the
Act.
2. The Union is, and has at all material times herein
been the exclusive majority representative of all employees
in the production and maintenance unit at the Respon-
dent's Franklin, Virginia, plant.
3. By refusing, on February 2, 1971 and thereafter, to
meet with the Union upon request, by refusing to execute
the collective-bargaining agreement negotiated with the
Union effective for the term of 1 year, and by withdrawing
recognition from the Union on April 16, 1971, the
Respondent has refused to bargain collectively with the
Union as the collective-bargaining representative of its
employees in the aforesaid unit, and has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices proscribed by Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 3
shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted
by the Board and become its findings , conclusions , and order , and all
objections thereto shall be deemed waived for all purposes.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent , Franklin Equipment Corporation, Inc.,
Franklin, Virginia, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to meet and
bargain with Laborers ' District Council of Virginia,
Production and Maintenance Employees ' Local Union
1138, affiliated with Laborers' International Union of
North America, AFL-CIO.
(b) Failing and refusing , upon request , to sign and give
effect retroactively to February 4, 1971, the agreement
reached with the Union.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self-
organization , to form , join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of work and other terms and conditions of employment.
(b) Upon request , sign the collective-bargaining agree-
ment fully negotiated and agreed upon on January 11,
1971, in the manner set forth in the section herein entitled
"The Remedy."
(c) Make whole all employees for any loss suffered by
reason of its failure to sign and comply with the aforesaid
agreement on February 4, 1971, retroactive to that date.
(d) Post at its plant in Franklin , Virginia, copies of the
attached notice marked "Appendix." 4 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being duly signed by an authorized representative of
the Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.5
4 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an'Order of the National Labor Relations Board "
5 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 5, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the opportunity to
present their evidence the National Labor Relations Board
has found that we, Franklin Equipment Company, Inc.,
violated the National Labor Relations Act, and ordered us
to post this notice. We therefore notify you that:
WE WILL NOT refuse to meet and to bargain with
Laborers' District Council of Virginia, Production and
Maintenance Employees' Local Union 1138, affiliated
with Laborers' International Union of North America,
AFL-CIO, as the exclusive bargaining representative of
the following employees:
All production and maintenance employees in our
Franklin, Virginia plant, including service depart-
ment employees, parts department employees,
inventory, filing and warranty clerks, but exclud-
ing professional employees, office clerical em-
ployees, guards and,supervisors as defined in the
Act.
WE WILL NOT refuse to sign and execute any
collective-bargaining agreement fully negotiated and
agreed upon with this Union.
WE WILL, upon request, sign and execute the
collective bargaining agreement fully negotiated be-
tween us and this Union on January 11, 1971.
WE WILL make whole all employees in the unit
described above for any loss suffered by reason of our
failure to sign and comply with the aforesaid agreement
on February 4, 1971, retroactive to that date.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist' any
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
FRANKLIN EQUIPMENT
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, Room 1019, Charles Center, Baltimore,
Maryland 21201, Telephone 301-962-2822.